Illinois Supreme and Appellate Court Case Summaries

By Laurence J. Dunford (LJD), Robert Clifford( RJC)  and Timothy J. Joyce(TJJ)

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10 Appellate Cases Posted 6-30-14

1.  Criminal Law: Reversed and Remanded: Encounters between police and citizens have been divided by the courts into three tiers: (1) arrests, which must be supported by probable cause; (2) brief investigative detentions, commonly referred to as "Terry stops," which must  be supported by a police officer's reasonable, articulable suspicion of criminal activity; and (3) consensual encounters, which involve no detention or coercion by the police, and thus, do not implicate fourth amendment interests. Police may conduct an investigatory stop when they reasonably infer from the circumstances that the person is committing, is about to commit, or has committed a criminal offense.   To justify an investigative stop, a police officer mustidentify specific and articulable facts which, when taken together with natural inferences, make  the intrusion reasonable.  These facts must justify more than a mere  inarticulate hunch, "but need not rise to the level of suspicion required for probable cause." Hoffman, J.

2014 IL App (1st) 123364  People v. Yanez  Filed 6-30-14 (LJD)

The State appeals pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006) from a circuit court order granting defendant Cecilia Yanez's motion to quash her arrest and suppress evidence obtained when police stopped and searched a vehicle she was driving. On appeal, the State contends the trial court erred in granting defendant's motion because the court erroneously applied the probable cause standard to determine whether an investigatory stop was justified and failed to consider the totality of the evidence. We reverse and remand for further proceedings.

2.  Administrative Review: Affirmed:  Formulas established by statute for the determination of bills and billing rate explained and discussed.  When reviewing the Commission's orders, we are limited to considering whether (1) the Commission acted within its authority; (2) adequate findings were made to support the decision;(3) the decision was supported by substantial evidence; and (4) state or federal constitutional rights were infringed."  'Substantial evidence' means more than a mere scintilla; however, it does not have to rise to the level of a preponderance of the evidence."  Pucinski, J.

2014 IL App (1st) 130302  Commonwealth Edison Company v. Illinois Commerce Commission  Filed 6-30-14 (LJD)

This is a consolidated case for review of the rulings of the Illinois Commerce Commission in Commonwealth Edison's (ComEd) 2012 statutory rate update and reconciliation case (2012 Rate Case), applying section 16-108.5 of the Public Utilities Act, commonly known as the Energy Infrastructure Modernization Act (220 ILCS 5/16-108.5 (West 2012)), which amended the Public Utilities Act (220 ILCS 5/1-101 et seq. (West 2012)). ComEd seeks review of three issues in the 2012 rate update order: (1) the billing determinants; (2) the allocation of certain common costs that  omEd incurs in connection with its interstate transmission service and its local delivery service; and (3) the denial of most of ComEd's 2011 Rate Case attorney fees and expenses as costs. ComEd argues that the Commission's errors on these issues, taken together, prevent ComEd from recovering millions of dollars in its actual costs to provide electric service to its customers. We hold ComEd has failed to sustain its burden on appeal of establishing error by the Commission.

3.  Traffic Court/ Discovery Sanctions in Criminal Matters: Reversed and Remanded: The supreme court later observed that the holding in Schmidt did not establish a "rigid list which it believes should remain static and not take into account the fundamental changes which have occurred in law and society since that ruling" and expanded discovery in misdemeanor cases to include any relevant videotape made by an in-squad camera of the events leading to the defendant's arrest.  Discovery sanctions are not designed to punish and should be used to further these goals and to compel compliance.  However, harsh sanctions, such as the exclusion of evidence, may be warranted where the defendant is denied a full opportunity to prepare his defense and make tactical decisions with the aid of the information that was withheld.  The exclusion of evidence is generally not a preferred sanction because it does not further the goal of truth seeking and is an appropriate sanction only in the most extreme situations and is disfavored. People v. Kladis does not stand as authority for imposing a sanction against the prosecution where the requested discovery material never existed in the first instance.  Pierce, J.

2014 IL App (1st) 130300  People v. Strobel Filed 6-30-14 (LJD)

Defendant Thomas Strobel was arrested and charged with the misdemeanor offenses of driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2012)) and speeding (625 ILCS 5/11-601(b) (West 2012)). In response to a discovery motion, the State tendered to defendant a squad  car video of the arrest of the defendant and his performing field sobriety tests. The video did not contain any audio. The trial court entered a discovery sanction that barred the State from presenting any testimony or video at trial regarding the field sobriety tests due to the lack of a  contemporaneous audio recording. The State appeals, contending that the circuit court abused its discretion by imposing the discovery sanction where the State promptly tendered the video that contained no audio of the traffic stop because no audio was ever recorded. We reverse and remand.

4.  Criminal Law: Affirmed:  A void sentence, however, may be attacked at any time.  Further, "[i]t is well established that a sentencing judge cannot impose a penalty not otherwise allowed by the sentencing statute in question."  Plain Error doctrine and its tenants discussed.  Our supreme court has held that "notice under section 111-3(c) is not necessary when the prior conviction is a required element of the offense."  Reyes, J.

2014 IL App (1st) 122126   People v. Lewis  Filed 6-30-14 (LJD)

Defendant Joseph Lewis appeals his conviction of unlawful use of a weapon by a felon (UUW by a felon) after a jury trial. 720 ILCS 5/24-1.1(a) (West 2010). Defendant was sentenced to five years' imprisonment as a Class 2 offender. 720 ILCS 5/24-1.1(e) (West 2010). On appeal, Lewis  contends the trial court erred in sentencing him as a Class 2 offender for two reasons: (1) the State failed to provide notice pursuant to section 111-3(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(c) (West 2010)) that the State would seek a Class 2 sentence; and (2) the  rial court engaged in double enhancement by applying his one prior conviction for aggravated robbery, both as an element of his offense and to enhance his sentence. Defendant further contends the trial court erred in instructing the jury that it could consider his prior aggravated robbery  conviction in determining whether the State proved the UUW by a felon charge beyond a reasonable doubt. For the reasons which follow, we affirm.

5. Criminal Law: Affirmed: A trial court's ruling regarding the admissibility of evidence is reviewed for an abuse of discretion.  A trial court abuses its discretion where its ruling "is arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree with  it." People v. Rivera, 2013 IL 112467, ¶ 37. A trial court is charged with the responsibility of determining whether evidence is relevant and admissible.  Evidence is deemed relevant "if it has any tendency to make the existence of any fact that is of consequence to the determination of an action either more or less probable than it would be without the evidence."  Although a defendant in a criminal case may offer evidence that tends to show another individual committed the offense, such evidence is inadmissible as being irrelevant if it is too remote or speculative.  Generally, a weapon may not be admitted into evidence unless proof exists connecting it to the defendant and the crime or unless the defendant possessed the weapon when arrested for the crime. Admitting into evidence unconnected weapons is improper because it would arouse the jury and prejudice the defendant.   Mason, J.

2014 IL App (1st) 120232  People v. Kraybill  Filed 6-30-14 (LJD)

Defendant David Kraybill appeals his conviction for the first-degree murder of Joel Cacharelis following a jury trial.1 Kraybill raises the following evidentiary rulings as a basis for the reversal of his conviction: (1) preclusion of evidence of Cacharelis's criminal activities; (2) preclusion of evidence relating to the destruction of a detective's interview notes; (3) preclusion of a tape recorded interview between Kraybill and a detective; and (4) admission of photographs of collector coins and evidence of a .22-caliber silencer discovered in his house. Kraybill claims that the cumulative effect of the trial court's erroneous evidentiary rulings warrants a reversal of his conviction. We disagree and affirm.

6. Criminal Law: Reversed and remanded: Trial court erred in admitting evidence of prior beating by defendant's co-defendants in first degree murder case, where State claimed that murder was motivated by circumstances of prior incident, where State failed to show that revenge from earlier incident was the motive for murder with which this defendant was charged. Hyman, J.

No. 2014 IL App (1st) 102938-B  People v. Lopez  Filed 6-30-14 (TJJ)

Fifteen years old at the time of his arrest, defendant Carlos Lopez was convicted by a jury of murder for his participation, along with several codefendants, in the beating death of a factory employee in the parking lot where the victim worked. The trial court sentenced Lopez to 22 years in prison. Lopez appealed, raising several errors at trial as grounds for reversing his conviction, including the admission of evidence about an attack on a man by some of Lopez's codefendants in the same parking lot about three weeks earlier. Lopez argued that because he did not participate in the earlier crime, the State failed to meet the threshold requirement for admissibility under traditional "other crimes" analysis. We agreed, reversed Lopez's conviction, and remanded for a new trial. People v. Lopez, 2013 IL App (1st) 102938. Our supreme court then entered a supervisory order directing this court to vacate our judgment and reconsider our opinion in light of People v. Pikes, 2013 IL 115171. People v. Lopez, No. 116212 (March 10, 2014) (supervisory order). As directed, we vacate our prior opinion and have reconsidered the case after carefully reviewing Pikes and supplemental briefs from the parties. We continue to hold that the trial court erred in allowing the evidence of the earlier, unrelated attack, and reverse and remand for a new trial.

7. Dental Malpractice: Affirmed: Trial court ruling striking plaintiff's expert witness's affidavit as inconsistent with expert's deposition testimony was proper, and remaining matters presented to trial court supported trial court's entry of summary judgment in favor of defendant dentist in malpractice case alleging lack of informed consent regarding dental implant procedure. Hyman, J.

No. 2014 IL App (1st) 131068  Xeniotis v. Satko  Filed 6-30-14 (TJJ)

This appeal involves two summary judgment rulings resolving the issue of informed consent in a dental malpractice suit. Frosini Xeniotis sued Dr. Cynthia Satko and her corporation for damages resulting from allegedly negligent dental implant surgery,  which Xeniotis claims Dr. Satko performed without informed consent. The trial court denied Xeniotis's motion for partial summary judgment on her informed consent allegation, and later granted Dr. Satko's motion for summary judgment on the same issue. Xeniotis dismissed the remaining counts of her complaint and filed this appeal. On Xeniotis's motion, the court held: (i) neither the standard of disclosure nor expert medical evidence of Dr. Satko's failure to conform to that standard was established; and (ii)  a factual issue existed as to whether the nature of the discussions between Dr. Satko and Xeniotis met the standard of care for disclosure and informed consent. We find both bases support the trial court's denial of Xeniotis's motion for partial summary  judgment. On Dr. Satko's motion for summary judgment, the trial court struck Xeniotis's expert's affidavit as an improper attempt to change his deposition testimony. The trial court then found that without expert testimony, Xeniotis could not establish the  professional standard of disclosure for dental implant procedures or that Dr. Satko failed to conform to the professional standard of disclosure. Again, we agree with the trial court in striking the affidavit and granting Dr. Satko's motion for summary  judgment on the issue of informed consent.

8. Sexually Violent Persons Commitment Act: Reversed and remanded: Prosecutor's comments in closing argument were improper, and warranted new trial for respondent in sexually violent persons case. Hyman, J.

No. 2014 IL App (1st) 122918  In re Commitment of Gavin  Filed 6-30-14 (TJJ)

Proceedings under the Sexually Violent Persons Commitment Act identify individuals who are dangerous due to mental disorders that would predispose them to sexual violence and forces them into treatment for their own good and for the safety of society. Respondent Edward Gavin appeals a jury's finding that he is a sexually violent person under the SVP Act, arguing (i) he was improperly limited during his voir dire of the jury; (ii) the evidence failed to prove he met the  definition of a sexually violent  person; (iii) the State's opening statement and closing arguments were improper and so prejudicial as to require a new trial; and (iv) the trial court erred when it would not hold a proper dispositional hearing. We reverse and remand for a new trial on the  grounds that the State in both its opening remarks and closing arguments made sarcastic and otherwise highly improper and prejudicial statements about Gavin and his attorney that denied Gavin of his right to a fair trial.

9. Criminal Law/Fitness to Stand Trial: Affirmed: Trial court properly concluded that treatment plan submitted by state Department of Human Services complied with statutory requirements, and trial court order committing defendant to department involuntarily after finding of unfitness in criminal case and after extended treatment period proper in light of expert witness's testimony. Zenoff, J.

No. 2014 IL App 131217  People v. Olsson  Filed 6-30-14 (TJJ)

Defendant, Paul Olsson, appeals from orders entered by the circuit court of Lake County on October 16, 2013, and November 7, 2013, remanding him to the Department of Human Services (Department) after hearings pursuant to section 104-25(g)(2)(i) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/104-25(g)(2)(i) (West 2012)). We affirm.

10. Workers' Compensation: Affirmed in part, reversed in part, and remanded: Industrial Commission properly concluded that claimant was only "permanently partially disabled," rather than "permanently totally disabled," but erred in failing to consider whether claimant was entitled to a "wage differential award." Hoffman, J.

No. 2014 IL App (1st) 130297WC  Levato v. Illinois Workers' Compensation Commission  Filed 6-30-14 (TJJ)

The claimant, Phillip Levato, appeals the circuit court order which confirmed the decision of the Illinois Workers' Compensation Commission finding that he failed to prove that he was permanently and totally disabled after sustaining a lumbar spine injury  while in the employ of the City of Chicago. The claimant also appeals the circuit court order which confirmed the Commission's decision awarding him permanent partial disability (PPD) benefits for a 35% loss of person as a whole, pursuant to section  8(d)(2) of the Workers' Compensation Act instead of wage differential benefits under section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2006)). For the reasons that follow, we affirm in part, reverse in part,  vacate the Commission's decision in part, and remand the matter to the Commission with directions.

14 Appellate Cases Posted 6-27-14

1. Criminal Law: Affirmed: Evidence was sufficient to prove defendant guilty beyond a reasonable doubt where complaining witness testified she was sure her vagina was penetrated, and was "pretty sure" it was defendant's penis, as the crime is committed when an object is forcefully inserted into her vagina; element of force was sufficiently proven by virtue of defendant placing his body on victim so as to prevent her from moving; and defendant forfeited claim of error regarding trial court "refusal" to permit parties to argue at sentencing. Gordon, J.

No. 2014 IL App (1st) 112207  People v. Alexander  Filed 6-27-14 (TJJ)

Following a bench trial, defendant Antonio Alexander was convicted of criminal sexual assault for penetrating the vagina of his cousin G.R. with his penis by use or threat of force (720 ILCS 5/12-13(a)(1) (West 2010)), and after hearing factors in  aggravation and mitigation, the trial court sentenced defendant to 14 years and 6 months in the Illinois Department of Corrections (IDOC). On appeal, defendant argues: (1) that his conviction should be reversed because the victim's testimony was  insufficient to prove defendant guilty beyond a reasonable doubt; and (2) that the case should be remanded for resentencing because the trial court denied both parties the opportunity to present argument at the sentencing hearing. For the following reasons,  we affirm.

2. Statute of Limitations/Subrogation: Certified Question Answered: In case where insurance company failed to secure written assignment from its insured at time it settled home damage claim, so as to seek to press a subrogation claim, statute of limitations was not tolled by doctrine of equitable tolling, where inability to proceed with subrogation action until written assignment was received was only the fault of the insurance company, and not the defendant or any other external circumstances, and trial court should have dismissed action based upon statute of limitations. Gordon, J.

No. 2014 IL App (1st) 131631  American Family Mutual Insurance Company v. Plunkett  Filed 6-27-14 (TJJ)

The instant interlocutory appeal arises from the attempts of plaintiff American Family Mutual Insurance Company (American Family) to file suit against the defendant builders and architects in its capacity as subrogee of Michael P. McGrath, Jr., the owner  of a home designed and built by defendants. McGrath filed a claim with American Family, his insurer, after his home sustained water damage, and, after a lawsuit in federal court, American Family settled the claim for approximately $1.1 million; after  paying McGrath, American Family asked McGrath to execute a written assignment to the extent of its payment, but McGrath failed to respond. On remand after an earlier appellate court decision, McGrath eventually tendered an executed assignment to American Family, and the case was  dismissed. American Family then filed another lawsuit against defendants, this time as McGrath’s contractual subrogee. Defendants filed a motion to dismiss, claiming that the suit was barred by the statute of limitations. The trial court denied the motion to  dismiss, finding that the statute of limitations had been equitably tolled. Defendants then moved for a permissive interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 1, 1994), and the trial court certified one question for review: “Is  ‘equitable tolling’ a proper basis to deny Plunkett’s and PPAD’s motion to dismiss based upon the statute of limitations found in 735 ILCS 5/13-214(b)?” We granted the petition for leave to appeal, and now answer the trial court’s certified question in the  negative.

3. Mortgage Foreclosure: Affirmed: Trial court properly denied defendants' 2-1401 motion to vacate default judgment for foreclosure of mortgage, as bank subsidiary was not a debt collection agency subject to the Illinois Collection Agency Act, despite defendants' claim for such. Therefore, subsidiary's failure to register as a debt collection agency did not prevent foreclosure. McBride, J.

No. 2014 IL App (1st) 132075  Bank of America, N.A. v. Kulesza  Filed 6-27-14 (TJJ)

Plaintiff, Bank of America, N.A., filed a mortgage foreclosure complaint in October 2009, against defendants Marta Kulesza and Tomasz Skutnik. In August 2010, a default judgment and judgment for foreclosure and sale were entered in plaintiff's favor. A  judicial sale occurred in November 2011, and the trial court granted plaintiff's motion to confirm the sale in April 2012. In October 2012, defendants filed a motion to vacate pursuant to section 2-1401 of the Code of Civil Procedure. Plaintiff filed a motion to dismiss defendant's motion, which the trial court granted in June 2013. Defendants appeal, arguing that the trial court erred in granting the motion to dismiss because original plaintiff BAC Home Loans Servicing, LP (BAC), is not a subsidiary of substituted plaintiff Bank of America, N.A. (BoA), and, therefore, BAC is not exempt from the Illinois Collection Agency Act and any judgment entered is void. Affirmed.

4. Public Labor Law/Teachers: Reversed and remanded: Board of Education was not obligated under collective bargaining agreement or the Educational Labor Relations Act to arbitrate the placement of "Do Not Hire" designations on fired probationary teachers' files, as such is an "inherent managerial policy" not subject to arbitration. McBride, J. (Gordon, J., dissenting).

No. 2014 IL App (1st) 130285  The Board of Education of the City of Chicago v. The Illinois Educational Labor Relations Board  Filed 6-27-4 (TJJ)

Petitioner, the Board of Education of the City of Chicago, argues that respondent Illinois Educational Labor Relations Board erred in finding that petitioner was required to arbitrate grievances filed by respondent Chicago Teachers Union, after "Do Not  Hire" (DNH) designations were placed in the personnel files of certain nonrenewed probationary appointed teachers because the grievances concerned "its inherent managerial right to choose whom to hire." Reversed and remanded.

5. Municipal Taxes: Circuit court reversed, city department affirmed: City of Chicago could properly tax fuel sold to automobile manufacturer in Chicago that manufacturer would use to fill gas tanks of manufactured cars, even if vast majority of gas purchased was consumed by dealers or purchasers outside Chicago; therefore, car manufacturer owed tax for all gas so purchased, not just that consumed in Chicago in testing the vehicles. McBride, J.

No. 2014 IL App (1st) 130597  Ford Motor Company v. Chicago Department of Revenue  Filed 6-27-14 (TJJ)

The issue on appeal is whether Ford Motor Company is liable to the City of Chicago for a tax of $0.05 per gallon for all the fuel the car maker purchased and put into cars it made in Chicago between 2002 and 2008. A local ordinance provides, "A tax is  hereby imposed upon the privilege of purchasing or using, in the City of Chicago, vehicle fuel purchased in a sale at retail" and defines " '[u]se' " to include dispensing fuel into a vehicle's full tank and " '[s]ale at retail' " as "any sale to a person for that  person's use or consumption and not for resale to another." Chicago Municipal Code §§3-52-020, 3-52-010(B)(9), (8). The car maker contends the tax is due on only 2% of the gasoline and diesel it purchased from a Chicago fuel distributor because that is  the amount used to test run and relocate cars at the Chicago manufacturing plant and the other 98% was neither used nor consumed when it left Chicago in the tanks of cars transported to car dealerships that were billed for the fuel. An administrative law   judge determined that the tax applied to 100% of the fuel because "use" occurred when the fuel was dispensed into the new vehicle tanks, but the circuit court of Cook County reversed that determination, and the municipality now appeals from the court's  ruling. Trial court reversed; city department affirmed.

6. Criminal Law: Affirmed: Identification testimony of two eyewitnesses was sufficient to prove defendant guilty of first degree murder beyond a reasonable doubt despite fact that one admitted to telling a defense investigator that a police detective compelled her to identify defendant in a lineup, where that witness testified at trial that she said that to the defense investigator out of fear because she lived in the same neighborhood as defendant, and the State's closing argument was not prejudicial. Gordon, J.

No. 2014 IL App (1st) 120163  People v. Donahue  Filed 6-27-14 (TJJ)

Defendant Dwond Donahue was convicted on November 4, 2010, after a jury trial, of first degree murder and sentenced on December 12, 2011, to 47 years, plus a 25-year firearm enhancement, for a total of 72 years in the Illinois Department of  Corrections (IDOC). The case concerned the shooting death of Lawaide Labon, age 32, on June 14, 2008, near Jackson and Whipple Streets, in Chicago. On this direct appeal, defendant claims that the State presented insufficient evidence where there was  no physical evidence, no arrest at the scene, no admissions or statements by defendant, no evidence that defendant and the victim previously knew each other, and no evidence of gang affiliation or drug involvement, and where the case was based entirely  on the identifications of two witnesses, one of whom told a defense investigator that she identified defendant only after pressure from a detective. Defendant also claims that prosecutorial misconduct deprived defendant of a fair trial, when the prosecutor  made false statements about the defense's theory of the case and made inflammatory remarks, such as the victim would have been safer in a war zone then on the streets of Chicago since the death rate is lower in the military than in Chicago. For the  following reasons, we affirm.

7. Domestic Relations: Reversed and remanded: Trial court erroneously granted summary judgment to wife on petition by husband's former attorney for contribution for attorney's fees, where trial court still had jurisdiction and authority pursuant to Sections 503(j) and 508(a) of Marriage Dissolution Act to consider attorney's fee petition, notwithstanding that dissolution of the marriage had already been granted. Palmer, J.

No. 2014 IL App (1st) 130109  In re Marriage of Cozzi-Digiovanni  Filed 6-27-14 (TJJ)

This appeal arises in the context of the dissolution of marriage action between petitioner and counterrespondent Sandra Cozzi DiGiovanni and respondent and counterpetitioner Cosimo DiGiovanni. During the pendency of the dissolution proceeding, Cosimo's former counsel, Michael D. Canulli, filed a petition against Sandra seeking contribution for attorney fees and costs owed by Cosimo to Canulli. The court granted summary judgment to Sandra on the petition, finding that,  pursuant to section 503(j) of the Illinois Marriage and Dissolution of Marriage Act, it did not have subject matter jurisdiction to consider the petition. It denied Canulli's motion to reconsider. Canulli appeals the  court's orders, asserting (1) nine arguments challenging the court's interpretation of sections 503(j) and 508(a) of the Act; (2) that Sandra waived her objection to the petition and (3) that the court was revested with  jurisdiction. He also requests that, upon remand for a hearing on his petition, the case be reassigned to a different trial judge. Although Sandra has not filed a brief in response, we will consider the appeal pursuant to the principles set forth in First Capitol  Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976). We reverse and remand for further proceedings.

8. Criminal Law: Affirmed in part and vacated in part: Trial court properly admitted prior consistent statements by State witnesses, as such were admissible under Section 115-12 of the Code of Criminal Procedure as prior statements relating to identification, other hearsay properly admitted under "police procedure" exception, defendant proved guilty beyond a reasonable doubt, and prosecutor's closing argument was not improper; "second" murder conviction vacated under "one act, one crime" rule, as there was only one murder victim. McBride, J.

No. 2014 IL App (1st) 111653  People v. Temple  Filed 6-27-14 (TJJ)

Following a jury trial, defendant Michael Temple was found guilty of two counts of first degree murder, and one count each of attempted first degree murder, and aggravated battery with a firearm. The trial court sentenced defendant to two concurrent  sentences of 45 years for the murder convictions, to run consecutive to two concurrent sentences of 31 years for the attempted murder and 30 years for the aggravated battery with a firearm conviction. On appeal, defendant contends: (1) the trial court erred  by admitting prior consistent statements or, in the alternative, defense counsel was ineffective for failing to object to the State eliciting prior consistent statements from its witnesses; (2) the trial court erred by admitting improper hearsay from the testifying  police officers; (3) the prosecutor improperly distorted the burden of proof and unfairly bolstered its own evidence during rebuttal argument; (4) the identification evidence was insufficient to prove defendant guilty beyond a reasonable doubt; and (5) the  mittimus must be corrected because defendant was improperly convicted for more than one offense arising out of the same acts. We affirm in part, vacate in part, and correct the mittimus.

9.  Workers Compensation: Reversed and Remanded: Whether a dismissed claim has been preserved for review is a question of law that we review de novo.  When certain of plaintiff’s claims are dismissed, and plaintiff subsequently files an amended complaint that does not refer to or incorporate those claims, plaintiff has abandoned those claims and may not raise them on appeal.  Plaintiff is correct in stating that an amendment to a pleading that is filed without leave of court must be disregarded on review.  (amended complaint was “a nullity” where it was filed without leave of court)  When the court rules upon a motion other than in the course of trial, the attorney for the prevailing party shall prepare and present to the court the order or judgment to be entered, unless the court directs otherwise.”). Rule 271 is a rule of procedure and not a suggestion; counsel and courts alike are bound to follow it.  Our supreme court has explained that an injured employee may still bring a common-law action against his employer if he can prove any of the following exceptions: (1) the injury was not accidental; (2) the injury did not arise from his employment; (3) the injury was not received during the course of employment; or (4) the injury is “not compensable under the Act.”  Taylor, J.

2014 IL App (1st) 123219  Folta v. Ferro Engineering Filed 6-27-14 (LJD)

This is a case of first impression in Illinois. It is a decision that determines when an employee can sue his employer outside of the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2010)) (the Act) and the Workers’ Occupational Diseases Act (820 ILCS 310/1 et seq. (West 2010)) when the employee first learns of his injury after the expiration of the statute of repose under those acts.  The trial court granted Ferro Engineering’s motion to dismiss, and plaintiff now appeals. For the reasons that follow, we reverse and remand.

10.  Affirmed in Part, Reversed in part and Remanded:  Unless specifically provided, appeals from final judgments in delinquent minor proceedings are governed by the rules applicable to criminal cases.  A trial court has inherent authority to dismiss criminal charges where there has been a clear denial of due process that prejudices the defendant.  To dismiss an indictment, "the denial of due process must be unequivocally clear [citation], and the prejudice must be actual and substantial.   The relevant question was whether "the
deception was crucial to the determination of probable cause.  One crime one act doctrine analyzed and discussed.   Hall, J.

2014 IL App (1st) 121749  In re Angel P.   Filed 6-27-14 (LJD)

The respondent, Angel P., appeals from orders of the circuit court of Cook County adjudicating him a delinquent minor and committing him to the Department of Juvenile Justice.

11.  Pension Funding: Affirmed in part, Reversed in pat and eremanded:  The primary goal of statutory construction is to ascertain and give effect to the intent of the legislature.  The best method for determining legislative intent is the statutory language, which must be given its plain and ordinary meaning. A court may not depart from the plain language by reading exceptions, limitations, or conditions into the statute that conflict with the clearly expressed legislative intent.   The language of the statute must be read in context and should be given a
reasonable construction without being rendered superfluous.  The supreme court stated that the pension protection clause “does not create a contractual basis for participants to expect a particular level of funding, but only a contractual right ‘that they would receive the money due them at the time of their retirement.   Lampkin, J.

2014 IL App (1st) 130416  Board of Trustees of The Riverdale Police Pension Fund v. Village of Riverdale   Filed 6-27-14 (LJD)

Plaintiff, the Board of Trustees of the Riverdale Police Pension Fund (Pension Board) appeals the order of the circuit court granting summary judgment in favor of defendant, the Village of Riverdale (Village)2, and denying partial summary judgment in favor of plaintiff. Plaintiff contends the circuit court erred in finding sections 3-125 and 3-127 of the Illinois Pension Code (Pension Code) (40 ILCS 5/3-125 (West 2008); 40 ILCS 5/3-127 (West 2010)) did not provide plaintiff with a contractual right to a specified level of funding of the Riverdale Police Pension Fund (Pension Fund). Plaintiff additionally contends the circuit court erred in failing to find defendant liable for underfunding the Pension Fund. Based on the following, we affirm in part and reverse in part and remand for additional proceedings.

12.  Juvenile Justice: Affirmed: The eighth amendment and the proportionate penalties clause do not apply to juvenile proceedings initiated by a petition for an adjudication of wardship.  The Supreme Court court concluded that proceedings under the Act are not criminal in nature, and that an adjudication of wardship is not a direct action by the State to inflict punishment within the meaning of the eighth amendment and proportionate penalties clause. Statutes carry a strong presumption of constitutionality. Id. at 487. To overcome this presumption, the party challenging the statute has the burden of establishing that the statute violates the constitution.  The eighth amendment, as applied to the states through the fourteenth amendment, prohibits the infliction of cruel and unusual punishment for criminal offenses, as well as punishments that are disproportionate in relation to the offense committed or the status of the offender. McBride, J.

2014 IL App (1st) 140387 In re A.P. Filed 6-27-14 (LJD)

After a jury trial, respondent A.P. was adjudicated a delinquent minor for the offense of robbery and sentenced as a habitual juvenile offender and committed to the Department of Juvenile Justice (DJJ) until his twenty-first birthday, as required pursuant to section 5-815(f) of the Juvenile Court  ct of 1987 (Act) (705 ILCS 405/5-815(f) (West 2012)). On appeal from that order, respondent contends that: (1) the habitual juvenile offender provision of the Act is unconstitutional under the eighth amendment of the United States Constitution, the proportionate penalties clause of the Illinois Constitution, and the Supreme Court's decision in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012); and (2) the habitual juvenile offender provision of the Act violates federal and state due process and the equal protection clauses of the United States and Illinois Constitutions. We affirm.

13.  Employment Contracts:  Affirmed:  Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”).  Res judicata1 in all its forms is an equitable doctrine that a court should apply only as fairness and justice require a dismissal based on the doctrine is subject to de novo review.  Under Kentucky law, which the parties agree applies, a judgment on a claim is res judicata not only as to the claim itself, but also as to all compulsory counterclaims.   Hudson, J. 

2014 IL App (2nd) 130948   Wanandi v. Black Filed 6-27-14 (LJD)

Edward Wanandi appeals the dismissal of his complaint for damages based on Bruce Black’s alleged breach of a promise to remain employed by Wanandi’s company. Wanandi’s complaint alleged that, at a critical point in negotiations to sell the company, Black repudiated his promise to remain employed after the company’s sale, instead demanding $1.6 million to stay on, which caused the sale to fall through. Black successfully moved for the complaint’s dismissal on res judicata grounds based on litigation in Kentucky. Wanandi here argues that the Illinois claim was not a compulsory counterclaim in the Kentucky case and so was not barred by res judicata. He further argues that the Kentucky trial court documents on which Black’s motion to dismiss depended were not affidavits and so were insufficient to support the motion.  We hold that the nucleus of facts underlying the Kentucky litigation and the Illinois complaint was the same: both were rooted in the events surrounding the attempted sale of the company, and both turned on whether Black was entitled to $1.6 million. We further hold that the trial court did not err in relying on the certified Kentucky court documents, which were the proper documents to establish the procedural facts of the litigation. We therefore affirm.

14.  Real Estate Disclosure act: Affirmed in part and Reversed in part: The Disclosure Act does not provide an express provision regarding the standard of proof to be applied for a violation. However, according to established rules of statutory construction, a statute is construed as changing common law "only to the extent that the terms thereof warrant, or as necessarily implied from what is expressed."  An inference that the common law is repealed is not favored.  Common law requires that fraud be proven by clear and convincing evidence.  Elements of a cause for common law fraud also analyzed and discussed.  Goldenhersh, J.

2014 IL App (5th) 130163   Butler v. Harris   Filed 6-27-14 (LJD)

Plaintiffs, Robert and Elizabeth Butler, filed a two-count complaint against defendants, Mark Harris and Lisa Harris (now Lisa Bohnenstiehl due to defendants' divorce), to recover between $3,200 and $4,000 in septic system repairs and over $32,000 in attorney fees. Count I alleged common  aw fraud, and count II alleged a violation of the Residential Real Property Disclosure Act (Disclosure Act) (765 ILCS 77/1 et seq. (West 2008). After a bench trial in the circuit court of Madison County, the trial court entered judgment in favor of defendants on count I and a judgment in favor of plaintiffs on count II in the amount of $12,000. We affirm in part and reverse in part on the basis that plaintiffs failed to meet their burden of proof on either count and remand with directions that each party pay his or her own attorney fees. We note that Lisa Bohnenstiehl has not participated in this appeal.

11 Appellate Cases Posted 6-26-14

1.  Criminal Law\Post-conviction Petition: Affirmed: Evidence supporting an actual innocence claim must be newly discovered, material, noncumulative, and of such conclusive character as would probably change the result on retrial. Defendant failed to make a substantial showing of actual innocence. The circuit court's granting the State's motion to dismiss defendant's second successive postconviction was correct.  Lavin, J.

No. 2014 IL App (1st) 111783-U   People v. Sanders   Filed 6-26-14 (RJC)

Following a jury trial, defendant McClain Sanders was convicted of first degree murder and aggravated kidnapping and sentenced to concurrent terms of 60 and 15 years in prison, respectively. Defendant now appeals from the dismissal, on motion of the State, of his second successive postconviction petition. On appeal, defendant contends that his petition should have advanced to an evidentiary hearing because he presented newly discovered evidence that established a substantial claim of actual innocence. We conclude that the trial court properly dismissed defendant’s petition.

2.  Construction\SOL: Affirmed in part and reversed in part; cause remanded: No good reason to disturb these contract provisions that were bargained for by sophisticated parties, and affirm the trial court's finding enforcing the contractual accrual date in both the
SCDT/Fitzgerald and SCDT/Linn-Mathes contractsIn this case, because of the existence of the cause of action accrual agreement, the two year period began to run on the date of substantial completion.  Because substantial completion occurred at the latest on October 11, 2004, the limitation period on SCDT's claims for implied indemnity against the third-party defendants expired on October 11, 2006, well in advance of the March 9, 2009 tolling agreement, and are therefore time-barred.  SCDT's express indemnity claim against Linn-Mathes must be governed by the 10-year statute of limitations applicable to written contracts because the nature of that claim is for the failure to indemnify rather than any act or omission relating to construction activity.  Howse, J.

No. 2014 IL App (1st) 122292   15th Place Condominium Association v. South Campus Development Team, LLC   Filed 6-26-14 (RJC)

In this case, third-party plaintiff-appellant South Campus Development Team (SCDT) appeals the trial court's order that dismissed with prejudice its third-party claims against third party defendants Fitzgerald Associates Architects P.C. (Fitzgerald) and Linn-Mathes, Inc. (Linn-Mathes), on the grounds that the claims are time-barred. The third-party complaint contains claims of breach of contract, breach of the implied warranty of good workmanship, implied indemnity and express indemnity. The implied warranty of good workmanship and the express indemnity claims are only applicable to Linn-Mathes. In order to make a ruling in this appeal, we must determine three issues: (1) whether a cause of action accrual provision is enforceable to bar a third-party complaint against one of the contracting parties; (2) whether the trial court improperly resolved a disputed issue of fact when it ruled on a motion to dismiss; and (3)  whether the 4-year limitations period applicable to construction-related activities (735 ILCS 5/13-214(a) (West 2008)) or the 10-year statute of limitations period applicable to written contracts (735 ILCS 5/13-206 (West 2008)) applies to a general cocontractor's written promise to indemnify an owner against claims of defects in construction.

3.  Probate\Contracts: Affirmed: The circuit court properly granted summary judgment in favor of the Estate where there was no genuine issue as to any material fact. The circuit court properly found that the contract was unenforceable.  Fitzgerald Smith, J.

No. 2014 IL App (1st) 131524    Dohrmann v. Swaney   Filed 6-26-14 (RJC)

Appellant George J. Dohrmann III appeals from the circuit court’s grant of summary judgment to appellee Thomas E. Swaney, independent executor of the estate of Virginia H. Rogers, deceased (the Estate), as to the two remaining counts of his complaint. These counts relate to an alleged agreement made between Dorhmann and Mrs. Rogers prior to Mrs. Rogers' death in which Mrs. Rogers signed a document (the contract) agreeing to give Dohrmann, in part, her apartment and all of the items contained therein, as well as the sum of $4 million. Dohrmann contends on appeal that the trial court erred in granting summary judgment.

4.  Sexually Violent Persons Commitment Act\Subpoenas: Certified question answered; remanded: The certified question is answered in the affirmative because under the SVP Act a respondent has a statutory right to issue a subpoena duces tecum prior to a probable cause hearing.  Accordingly, the issue of whether a particular subpoena request should be quashed is governed by the civil practice law and those issues can be resolved by the trial court based on the facts of each case. Howse, J.

No. 2014 IL App (1st) 133040    In re Commitment of Clark   Filed 6-26-14 (RJC)

In this interlocutory appeal we consider the question of whether an individual who is subject to the provisions of the Sexually Violent Persons Commitment Act (the SVP Act) (725 ILCS 207/1 et seq. (West 2008)) has a right to issue a subpoena before a probable cause hearing under the SVP Act. The trial court certified the following question pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010): “Does the respondent under the Sexually Violent Persons Commitment Act, 725 ILCS 207 et seq., have a statutory or constitutional right to issue a subpoena duces tecum prior to a probable cause hearing held pursuant to Section 30 of the Act?” We granted leave to appeal pursuant to Illinois Supreme Court Rule 308.

5.  Criminal Law: Affirmed: The evidence of defendant's pattern of robbing elderly women on the southwest side of Chicago was properly admitted to prove his modus operandi. While inadmissible hearsay was introduced at defendant's trial, the admission of that testimony was harmless. Further, the defendant's attorney did not render ineffective assistance in failing to make fruitless motions and that the State presented sufficient evidence to prove defendant guilty beyond a reasonable doubt.  Epstein, J.

No. 2014 IL App (1st) 121950    People v. Littleton   Filed 6-26-14 (RJC)

Following a bench trial, defendant Ernest Littleton was found guilty of the robbery of Audrey Schenck and sentenced to 25 years' imprisonment. Defendant raises several issues on appeal: (1) the trial court erred in admitting evidence of other crimes; (2) the trial court erred in admitting testimony that violated the rule against hearsay and the confrontation clause; (3) trial counsel was ineffective in failing to make a speedy trial demand and failing to move to suppress eyewitness identifications; and (4) the State failed to prove him guilty beyond a reasonable doubt.

6.  Criminal Law\Sex Offender Registration Act: Affirmed: The Act required defendant  to register as a sex  offender for life and that the trial court was not required to admonish defendant of his duty to register as a sex offender. With respect to defendant's constitutional challenges, the Act is not vague and adhere to Illinois precedent upholding the retroactive application of the Act.  Epstein, J.

No. 2014 IL App (1st) 122122    People v. Fredericks   Filed 6-26-14 (RJC)

Defendant David Lee Fredericks pled guilty to one count of methamphetamine possession and was sentenced to two years' probation. As a result of his prior conviction for attempted aggravated criminal sexual abuse and his guilty plea in this case, defendant was required to register as a sex offender for life pursuant to section 3(c)(2.1) of the Sex Offender Registration Act (the Act). 730 ILCS 150/3(c)(2.1) (West 2012). Defendant filed a motion to withdraw his guilty plea, which the trial court denied.Defendant appeals from the denial of his motion to withdraw his guilty plea, alleging: (1) the Act was not intended to apply to him; (2) the trial court failed to comply with the notice provisions of the Act; (3) his guilty plea was not knowing and voluntary because the trial court failed to admonish him of the possibility of retroactive lifetime sex offender registration; (4) the Act is unconstitutionally vague; (5) the retroactive application of lifetime sex offender registration is an unconstitutional ex post facto punishment; and (6) the Act violates the fifth, eighth, and fourteenth amendments to the United States Constitution. We find that the Act required defendant
to register as a sex  offender for life and that the trial court was not required to admonish defendant of his duty to register as a sex offender. With respect to defendant's constitutional challenges, we find that the Act is not vague and adhere to Illinois precedent upholding the retroactive application of the Act. Accordingly, we affirm the trial court's denial of defendant's motion to withdraw his guilty plea.

7.  Easements: Affirmed: The central issue that lies between the parties is whether a driveway easement actually exists or not. Plaintiffs failed to present sufficient facts for a finding that defendants breached their fiduciary duties or that the breach was the proximate cause of their damages.  None of the evidence created a material fact of bad faith that would deprive defendants of the protections of the declaration's exculpatory clause of the business judgment rule, or the advice of counsel defense. Plaintiffs have not established that the trial court abused its discretion in denying their request to file a second amended complaint.  Finally, the association's declarations and the planned development ordinance were sufficient basis to support the trial court's finding that no easement existed. Thus, the trial court did not err in granting summary judgment as to count I. Hyman, J.

No. 2014 IL App (1st) 130269    Feliciano v. Geneva Terrace Estates   Filed 6-26-14 (RJC)

Plaintiffs, Marc Feliciano and Carolyn Pleyto-Feliciano, bought a vacant lot in Geneva Terrace Estates, a planned development in Chicago's Lincoln Park neighborhood. The City of  Chicago's department of planning and development approved their plans to build a three-story, single-family home on the lot and issued a building permit. Shortly after construction began, the defendants, the Geneva Terrace Homeowners Association (association) and the association's board, threatened litigation if plaintiffs proceeded with construction before determining whether the planned home encroached on a purported driveway easement between plaintiffs' lot and the adjoining lot. Plaintiffs halted construction and filled in the excavation site. They then filed a complaint seeking a declaratory judgment that there was no enforceable driveway easement between the two lots. Plaintiffs also alleged the individual defendants breached their fiduciary duties as board members and sought a declaration prohibiting the association from indemnifying them.  The trial court granted plaintiffs' summary judgment motion, concluding that no driveway easement had been created, and granted defendants' summary judgment motion on the breach of fiduciary duties and indemnification allegations. Plaintiffs appeal the summary judgment order in favor of defendants on the breach of fiduciary duty allegations and also contend the trial court erred in denying them leave to file a second amended complaint. In response, defendants want us to affirm the order as to the breach of fiduciary duty claims and on cross-appeal assert that if this court reverses on those counts, we should also reverse the summary judgment order in plaintiffs' favor on count I. We affirm the trial court's orders.

8.  Parentage\support\modification: Affirmed in part and reversed in part: The only issue in this appeal is whether the trial court erred in dismissing petitioner’s petitions to modify and for indirect civil contempt.  In the present case, we adopt the rationale of the majority of other  jurisdictions.  Therefore, we conclude that, once the obligor, the obligee, and the minor children who are subject to a support order no longer reside in Illinois, the issuing Illinois court loses continuing exclusive jurisdiction to modify that order. Nonetheless, we also conclude that, until a different jurisdiction obtains continuing exclusive jurisdiction over a support order, Illinois, as the issuing state, retains jurisdiction to enforce that order.  Hutchinson, J.

No. 2014 IL App (2d) 130536    Collins v. The Department of Health and Human Services   Filed 6-26-14 (RJC)

In 1997, the Illinois Department of Public Aid (IDPA) entered an administrative order declaring petitioner, Gary W. Collins, the biological father of A.C. (the minor) and ordering him to pay child support to Wendy Paczek, the minor’s mother. Thereafter, Paczek and the minor relocated to Nashville, Tennessee, and petitioner relocated to a suburb of Columbus, Ohio.  While living in Ohio, petitioner filed in the circuit court of Du Page County a petition to abate or reduce child support and a petition for indirect civil contempt. Petitioner served discovery requests on respondent, the Illinois Department of Health and Family Services (IDHFS), which the trial court had previously granted leave to intervene on Paczek’s behalf. The trial court, sua sponte, entered an order transferring the matter to Tennessee after finding that neither party resided in Illinois. Petitioner timely appealed, contending that the trial court erred in dismissing both of his petitions for lack of jurisdiction. We affirm in part and reverse in part.

9.  Criminal Law\Pleas\Contempt: Affirmed: Both the State and the defendant are bound by terms of a plea agreement.  Based on the stipulations, the plea agreement clearly required the respondent to testify against Rosalez at that hearing and his failure to do so violated that agreement. The State’s petition for adjudication of contempt did not violate the plea agreement. Civil contempt involves sanctions that are prospective and seek to coerce particular conduct. Criminal contempt is designed to punish past conduct. Id. In the present case, the respondent was found in criminal contempt for failing to testify as agreed to in his plea agreement and as ordered by the trial court.  The trial court was incorrect when it stated that substitution of judge as of right pursuant to section 114-5(a) was not available in a criminal contempt proceeding.  In the present case, although the trial court’s reasoning might have been improper, it did not err in denying the motion for substitution of judge, because the respondent’s motion was not in proper form. The respondent’s motion named two judges rather than one judge as allowed for in the statute.  The failure to file such a motion in proper form is a sufficient basis on which to deny the motion. Schostok, J.

No. 2014 IL App (2d) 120946    People v. Perez-Gonzalez   Filed 6-26-14 (RJC)

The respondent, Raul Perez-Gonzalez, was convicted of direct criminal contempt of court and subsequently sentenced to 10 years’ imprisonment. On appeal, the respondent argues that (1) the State’s petition for contempt violated his plea agreement, (2) his refusal to testify was not punishable as contempt, (3) the trial court erred in denying his motion for substitution of judge, and (4) his sentence was excessive. We affirm.

10.  Judicial Estoppel: Affirmed: The trial court did not abuse its discretion in applying the doctrine of judicial estoppel when the plaintiff (1) took two different positions (by impliedly representing to the bankruptcy court he had no pending lawsuit while, at the same time, pursuing damages in a lawsuit in state court), (2) in two separate judicial proceedings, (3) under oath, (4) and received a discharge from the bankruptcy court without its knowledge of the potential recovery of damages from plaintiff's pending personal-injury lawsuit
against defendants, and (5) received the benefit from representing two "totally inconsistent" positions. All five elements are present in this case to justify the applicability of the doctrine.
Appleton, J.

No. 2014 IL App (4th) 130911    Shoup v. Gore   Filed 6-26-14 (RJC)

Plaintiff, John D. Shoup, appeals from the trial court's judgment granting summary judgment in favor of defendants on the basis of judicial estoppel. Plaintiff claims judicial estoppel does not apply to the facts of this case. We disagree and affirm.

11.  Illinois Workers' Compensation Act: Affirmed: The arbitrator found TTD benefits were appropriate because (1) claimant's presence at the flower shop and occasional assistance to her daughters there did not constitute a "return to work" and (2) she had not yet reached MMI nor had she been released to return to work. The Commission adopted the arbitrator's decision. Based on this evidence, we find the Commission's award of TTD benefits is not against the manifest weight of the evidence.  Also, the record contains sufficient support for the Commission's causation finding and "[t]here is no evidence of any intervening accidents". Harris, J.

No. 2014 IL App (4th) 130028 WC    Sunny Hill of Will County v. The Illinois Workers' Compensation Commission    Filed 6-26-14 (RJC)
On July 31, 2009, claimant, Dalia Mahoney-Tapella, filed an application for adjustment of claim pursuant to the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)), seeking benefits from the employer, Sunny Hill of Will County d/b/a Sunny Hill Nursing Home (Sunny Hill). She alleged a work-related injury that occurred while she was assisting a patient on December 5, 2008, causing injury to her right shoulder and lower back.  Following a hearing, the arbitrator determined claimant's condition of ill-being was causally related to the accident that arose out of and in the course of her employment, and claimant's presence at a flower shop she co-owned did not constitute a "return to work" or absolve Sunny Hill of its liability to pay temporary total disability (TTD) benefits. The arbitrator awarded claimant TTD benefits of $596.00 per week for the periods of December 6, 2008, through June 9, 2009; July 23, 2009, through August 27, 2009; and September 22, 2009, through June 15, 2011.  On review, the Illinois Workers' Compensation Commission (Commission) affirmed and adopted the arbitrator's decision. On judicial review, the circuit court of Will County confirmed the Commission's decision.  Sunny Hill appeals, arguing (1) the Commission erred in awarding claimant TTD benefits and (2) the Commission's finding that claimant's present condition of ill-being is causally related to the December 5, 2008, work accident is agains the manifest weight of the evidence. We affirm.

5 Appellate Cases Posted 6-25-14

1.  Criminal Law: Affirmed: Discussion of Plain Error Doctrine and requirements of the doctrine.  Under section 111-4(a), two or more offenses may be charged in the same indictment if the charged offenses "are based on the same act or on 2 or more acts which are part of the same comprehensive transaction."  In determining whether a defendant's acts were part of the same comprehensive transaction, the most crucial factors to consider include: "the proximity of time and location of the various charges; the identity of evidence which would be presented to prove each charge; whether the offenses shared a common method; and whether the same or similar evidence would establish the elements of the offenses." e trial court has broad discretion to sever, and, as a reviewing court, we affirm unless that decision constitutes an abuse of discretion. The "most important factors" in determining whether offenses are part of a comprehensive transaction are their proximity in time and location and whether there is common evidence with respect to the offenses. Hyman, J.

No. 2014 IL App (1st) 113004   People v. Fleming  Filed 6-25-14 (LJD)

This is an apparent case of first impression involving joinder of codefendants and offenses before a single jury. Defendant, Riley Fleming, claims he was denied a fair trial when the same jury decided both the charges against him and the charges brought solely against his codefendant for an  arguably subsequent and distinct offense. Fleming also contests the sufficiency of the evidence to convict him of aggravated discharge of a firearm and attempted armed robbery on accountability on the basis that the State failed to offer any evidence supporting its theory other than his mere  presence at the scene. Lastly, Fleming contends the trial court should have imposed a two-year term of mandatory supervised release (MSR) because he was found guilty of a Class 2 offense instead of the three-year term which attaches to Class X felonies.  We find the trial court properly exercised its discretion in granting the State's motion for joinder. We further find the evidence was sufficient to support Fleming's convictions and he was properly subjected to a Class X MSR term of three years. We affirm his convictions and sentence.

2.  Domestic Relations: Affirmed: Absent a transcript of the hearing where evidence was heard and absent specific grounds for the denial, review for an abuse of discretion of the trial court's ruling was foreclosed.  But because the appellant is required to provide the reviewing court with a record sufficient to support his or her claims of error, any doubts and deficiencies arising from an insufficient record will be construed against Rajaie.  Unlike the specificity required in the notice of appeal, the docketing statement only requires a statement of the general issues proposed to be raised by the party, and the failure to include an issue in the docketing statement 'will not result in the waiver of the issue on appeal.  Under the Act, after classifying property as marital or nonmarital, the trial court gives to each spouse his or her nonmarital property, and the marital property is divided into “just proportions. A trial court has broad discretion in the division of marital assets, and we will reverse its determinations only if it is clear that the trial court has abused that discretion.  A trial court may require that debts incurred following separation be paid by the party incurring them.  But those debts may be considered marital, and it is within the trial court's discretion to order that the other party or both parties be held responsible for paying them.  To place a specific value on an item of marital property, there must be competent evidence of its value presented.  Generally, the valuation of assets in an action for dissolution of marriage is a question of fact, and the trial court's determination will not be disturbed absent an abuse of discretion.  But where a party does not offer evidence of an asset's value, the party cannot complain as to the disposition of that asset by the court.  Under the Act, child support is calculated based on the noncustodial parent's net income.  “Net income” is defined as the total of all income from all sources, minus certain statutory deductions. Hyman, J.

No. 2014 IL App (1st) 122997 In re Marriage of Abu-Hashim  Filed 6-25-14 (LJD)

Appellate courts typically give great deference on the factual issues to the trial court hearing the dissolution of marriage proceeding. One reason is the trial court’s familiarity with the dueling spouses, and if represented, their counsel, and its exposure to and grasp of the evidence in the context of the entire proceeding. Rajaie Abu-Hashim, who appeals certain provisions in a judgment for dissolution of his marriage from petitioner, Kimberly Abu-Hashim, raises issues that all relate to factual disputes resolved by the trial court. Rajaie has not carried his burden of showing an abuse of discretion, and, accordingly, we affirm the trial court's decisions.

3.  Employment/Illinois Employee Classification Act: Affirmed: The Act establishes a rebuttable presumption that an "individual" performing services for a contractor is an employee of the contractor unless it is shown that: (1) the individual has been and will continue to be free from control or direction over the performance of the service for the contractor; (2) the service performed by the individual is outside the usual course of services performed by the contractor; and (3) the individual is engaged in an independently established trade, occupation, profession or business; or (4) the individual is deemed a legitimate sole proprietor or partnership.  The Act does not define "individual," but it does exempt independent contractors, sole proprietors, or partnerships that can satisfy specific statutory criteria showing that they effectively operate independently from the construction contractor.  Empowered with this rulemaking authority, the Department's regulation instructs that an "individual performing services" does not include a "bona fide corporation."  The regulations factors are listed.    Mason, J.

No. 2014 IL App (1st) 132695 Michael v. Pella Products, Inc.  Filed 6-25-14 (LJD)

Plaintiff-Appellant Robert J. Michael, the owner of Robert J. Michael Homes, Inc., brought an action against defendant Pella Products, Inc. under the Illinois Employee Classification Act (the Act) (820 ILCS 185/10 (West 2012)) alleging Pella misclassified him as an independent contractor instead of as an employee of Pella. Pella moved for summary judgment in the trial court on the ground that the Act's administrative regulations promulgated by the Illinois Department of Labor (56 Ill. Adm. Code 240.110 (2008)), provide that incorporated businesses like RJM are excluded from the scope of the Act. The trial court granted summary judgment to Pella, finding that facts showed that Pella contracted with RJM, that RJM was a bona fide corporation under the regulations and, therefore, the Act did not apply. We agree and affirm.

4.  Post Conviction Petition: Reversed and Remanded: A postconviction petition presents an actual innocence claim where there is evidence that is (1) newly discovered, (2) material and not merely cumulative, and (3) of such conclusive character that it would probably change the result on retrial.  The new evidence need not prove actual innocence; it is enough that “ ‘all of the facts and surrounding circumstances *** should be scrutinized more closely to determine guilt or innocence.’    Burke, J.

No. 2014 IL App (2nd) 121219  People v. Henderson    Filed 6-25-14 (LJD)

Deendant, Darvin T. Henderson, appeals from a judgment summarily dismissing his pro se petition for postconviction relief, which raised claims of actual innocence and ineffective assistance of trial counsel. We reverse and remand for second-stage proceedings.

5.  Noegligent SPoliation: Affirmed: plaintiff raising a cause of action for negligent spoliation of evidence must prove the following: (1) the defendant owed a duty to the plaintiff to preserve the evidence, (2) the defendant breached that duty by losing or destroying the evidence, (3) the loss or destruction of the evidence was the proximate cause of the plaintiff's inability to prove an underlying lawsuit, and (4) as a result, the plaintiff suffered actual damages.   Welch, J.

No. 2014 IL App (5th) 130543  Hartmann Realtors v. Biffar  Filed 6-25-14 (LJD)

The defendant and counterplaintiff, Donna Biffar, appeals from the order of the circuit court of St. Clair County dismissing her counterclaim and striking her affirmative defense filed against the plaintiff and counterdefendant, Hartmann Realtors. For the reasons which follow, we affirm the decision of the circuit court and remand for further proceedings.

2 Appellate Cases Posted 6-24-14

1.  Real Estate Taxation/Administrative Review: Reversed and Remanded: Three standards of review for an agency decision listed and discussed.  RUles of Stautory Intrpretation are reviewed.  Developers who plat and subdivide land beyond the year in which it [was] reassessed risk losing the benefit afforded by the [developer’s relief provision]. Thus, while timely developersare protected, assessors are not indefinitely or unfairly prevented from reclassifying property andcollecting increased taxes.”  Jorgenson, J.

No. 2014 IL App (2nd) 130055  Sycamore Community Unit School District No. 427 v. Illinois Property Tax Appeal Board Filed 6-24-14 (LJD)

On December 21, 2012, respondent the Illinois Property Tax Appeal Board (PTAB) issued two separate, yet substantively identical, decisions, reducing the 2008 and 2009
property tax assessments of five vacant parcels in De Kalb County, owned by respondent Kevin Dahl(through respondent American National Bank Trust No. 2567). Petitioners, the De Kalb County Board of Review (Board) and Sycamore Community School District No. 427 (School District),appeal those decisions. Because the PTAB decisions involved an assessed valuation of greaterthan $300,000, from which the taxes would be calculated, the appeal was brought directly to theappellate court. 35 ILCS 200/16-195 (West 2012). The Board and the School District argue that the PTAB erred in applying section 200/10-30 of the Property Tax Code (35 ILCS 200/10-30 (West 2006)), which is known as the developer’s relief provision. We agree that the developer’s relief provision does not apply to the property, because the property was platted after it was reclassified as nonfarmland rather than farmland.  We reverse and remand.

2.  Domestic Relations: Affirmed:  A trial court's ruling on the modification of main tenance will not be reversed absent an abuse of discretion. A court abuses its discretion where no reasonable person would have taken the view adopted by the trial court. It is not our job to reweigh the statutory factors, and absent an abuse of discretion, we will not substitute our judgment for that of the trial court. A court may modify maintenance "only upon a showing of a substantial change in circumstances."Statutory factors listed and discussed in the opinion.  Schmidt, J., Carter, J., specially concurs.

No. 2014 IL App (3rd) 130561  In re Marriage of Virdi Filed 6-24-14 (LJD)

Petitioner, Narveen Virdi, and respondent, Prem Virdi, were married in 1970 and petitioned for dissolution of marriage in 1993. A judgment of dissolution was entered in 1998, which included an award of maintenance to Narveen.  In August 2011, the trial court granted Prem's petition to modify maintenance from $10,000 a month to $1,500 a month; this court upheld that decision on appeal. While that appeal was pending, Narveen filed a petition to modify the $1,500-a-month maintenance award, arguing that a substantial change in circumstances had occurred since that award was imposed. The trial court denied Narveen's petition to modify. Narveen appeals, raising two issues: (1) that the trial court abused its discretion in denying Narveen's petition to modify maintenance; and (2) this court should award Narveen attorney fees incurred for the present appeal. We affirm.

6 Appellate Cases Posted 6-23-14

1.  Pose Conviction Petition: Reversed and Remanded:  Our supreme court has upheld a defendant's right to challenge a sentencing scheme as a violation of the proportionate penalties clause at any time in the proceedings.  Such a violation renders the scheme void ab initio and not subject to waiver.  A sentence violates the proportionate penalties clause if (1) it is cruel, degrading, or so wholly disproportionate to the offense that it shocks the moral sense of the community, or (2) it is greater than the sentence for a different offense comprised of identical elements. Id. In upholding the "identical elements" test, the supreme court has consistently observed that, if the legislature " 'determines that the exact same elements merit two different penalties, then one of these penalties has not been set in accordance with the seriousness of the offense.' " For purposes of the identical elements test, we conclude that the offense of aggravated vehicular hijacking with a bludgeon is identical to armed violence based upon vehicular hijacking with a bludgeon.  Hoffman, J.

No. 2014 IL App (1st) 120913 People v. Ligon   Filed 6-23-14 (LJD)

A jury found the defendant, Dennis Ligon, guilty of aggravated vehicular hijacking with a dangerous weapon, a Class X felony, under section 18-4(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/18-4(a)(3) (West 2004)). Determining that this was the defendant's third Class X felony  conviction, the court sentenced him to a term of mandatory life imprisonment as an habitual criminal under section 33B-1 of the Code (720 ILCS 5/33B-1(a), (e) (West 2004)). The defendant filed a petition for relief from judgment (petition) under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)), contending that his sentence violated the proportionate penalties clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 11). The trial court dismissed his petition, and the defendant now appeals. We reverse the judgment of the trial court, vacate the defendant's sentence, and remand for further proceedings.

2.  Criminal LAw: Reversed and Remanded: Quite simply, the law in effect at the time of the offense governs.  We are not bound by a decision which was issued by another division of our court. Schiffner v. Motorola, Inc., 297 Ill. App. 3d 1099, 1102 (1998) (ruling of one  division of the First District is not binding on another).  The primary objective of statutory construction is to ascertain and give effect to the legislature’s intent. The most reliable indicator of legislative intent is the language of the statute, given its plain and ordinary meaning.”  Id. We must presume that the legislature did not intend absurd, inconvenient, or unjust results. Id. Under the rule of lenity, ambiguous criminal statutes are construed in the defendant’s favor. Id. However, the rule of lenity is subordinate to the obligation to determine  legislative intent, and the rule is not applied so rigidly as to defeat that intent. DeLort, J.

No. 2014 IL App (1st) 122501  People v. Richardson Filed 6-23-14 (LJD)

In 2009, the State indicted defendant Melvin Richardson for aggravated criminal sexual assault on a 17-year-old. The assault allegedly took place in 1997, 15 years earlier, when Richardson himself was 14 years old. The victim reported the crime immediately, but she did not know her assailant’s identity at the time of the occurrence. Years later, a Combined DNA Index System (CODIS) match identified Richardson as the possible assailant. By that time, he was 26 years old.  In sum, the court held that Richardson was now immune from prosecution in the same manner as if  he case was barred by a statute of limitations. The court denied the State’s motion to reconsider, and this appeal followed.  In sum, the court held that Richardson was now immune from prosecution in the same manner as if the case was barred by a statute of limitations. The court denied the State’s motion to reconsider, and this appeal followed.  The essential issue presented here is whether a person over 21 may be charged and prosecuted as a adult for a crime he committed while a juvenile, when the statute of limitations has not yet run, the defendant’s identity was unknown at the time of the crime, and the delay was not due to any fault of the State.

3.  Rule of Evidence: Affirmed:  For Rule 408 to apply, the communications must concern a claim actually in dispute as to the validity or amount at the time of the negotiations, or an apparent difference of opinion, and the communications must relate to that claim.  Thwere must be  a “substantial showing” that the communications were, in fact, part of an attempt to settle a disputed claim.  In making this determination, a court examines the totality of the circumstances, carefully reviewing the contents of the communications and their timing.  In making this determination, a court examines the totality of the circumstances, carefully reviewing the contents of the communications and their timing.  We note, however, that one party’s description of its communication as a “settlement offer” does not automatically bar the communication under Rule 408.  Hudson, J.

No. 2014 IL App (2nd) 120251  Control Solutions, LLC v. Elecsys   Filed 6-23-14 (LJD)

Plaintiff, Control Solutions, LLC, filed a complaint in the circuit court of Du Page County, alleging breach of contract by defendant, Elecsys, a division of DCX-CHOL Enterprises, Inc. The matter proceeded to a jury trial. The jury returned a verdict in favor of plaintiff and awarded damages in  he amount of $106,950. Following the denial of the parties’ posttrial motions, plaintiff filed a notice of appeal and defendant filed a notice of cross-appeal. In its appeal, plaintiff argues that the trial court committed reversible error by admitting settlement communications at trial in violation  of Illinois Rule of Evidence 408 (eff. Jan. 1, 2011). Plaintiff also contends that, for various reasons, it was “deprived of a true jury trial” and therefore the jury’s award of damages should be reversed and the matter remanded for a new trial on damages alone, or in the alternative a new trial on  liability and damages. In its cross-appeal, defendant asserts that, if this court grants plaintiff’s request for a new trial, the trial court’s order finding moot defendant’s “Unconscionability Motion” should be reversed and the motion should be considered on remand. For the reasons set forth below,  we affirm the trial court’s judgment and dismiss defendant’s cross-appeal.

4.  Criminal Law: Affirmed and Remanded for Resentencing: A defendant need only present some evidence of an affirmative defense—such as compulsion—in order to raise the defense and justify an instruction. After a defendant raises a defense, the burden shifts to the State to prove beyond a reasonable doubt that defendant's conduct was not justified by the offense. Consecutive sentences are required in two situations: (1) where the defendant was convicted of first degree murder; and (2) where the defendant was convicted of a Class X or Class 1 felony, and the defendant inflicted severe bodily injury during the commission of that felony. Schmidt, J.

No. 2014 IL App (2nd) 120633    People v. Orasco   Filed 6-23-14 (LJD)

A Will County jury found defendant, Jason Orasco, guilty of three counts of first degree murder (720 ILCS 5/9-1(a)(1)-(3) (West 2008)), one count of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), one count of home invasion (720 ILCS 5/12-11(a)(2)(West 2008)), one count of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2008)), and one count of armed robbery (720 ILCS 5/18-2(a)(2) (West 2008)). The three first degree murder counts merged together, and the aggravated battery merged with the attempted first degree murder. The court sentenced defendant to consecutive sentences of 50 years' imprisonment for first degree murder and 25 years for attempted first degree murder, to be served concurrently with sentences of 20 years for home invasion and 25 years for armed robbery. Defendant appeals, arguing that his trial counsel was ineffective for failing to instruct the jury on the affirmative defense of compulsion. The State argues that counsel's decision was strategic and, alternatively, that it did not prejudice defendant's defense. In addition, the State claims that defendant's sentence is void because all of  efendant's sentences must be served consecutively under section 5-8-4(d)(1) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-4(d)(1) (West 2008)). We affirm defendant's convictions, vacate his sentences, and remand for resentencing.

5.  Sentencing: Affirmed:  Home confinement pursuant to an appeal bond does not qualify as custody entitling one to credit against his sentence under the statute.  Schmidt, J.

No. 2014 IL App (3rd) 130548   People v. Smith   Filed 6-23-14 (LJD)

The State charged and convicted the defendant, Jason Smith, with two counts of felonious aggravated driving under the influence (625 ILCS 5/11-501(a)(4), 11-501(a)(5), 11-501(d)(1)(C), 11-501(d)(2)(F) (West 2008)) and one count of misdemeanor driving under the influence (625 ILCS 5/11-501(a)(6) (West 2008)). The trial court found the counts merged into the most serious offense and sentenced defendant to three years' incarceration. The court released defendant on bond pending the resolution of his direct appeal. This court affirmed defendant's conviction and sentence.  eople v. Smith, 2013 IL App (3d) 120149-U. Thereafter, defendant moved for sentencing credit for the time he spent released pending the conclusion of his appeal. Defendant claimed that the conditions of his release entitled him to day-for-day credit against his three-year sentence of  ncarceration. The trial court denied defendant's motion and remanded him to the custody of the Illinois Department of Corrections. Defendant appeals that ruling, claiming the trial court erred when finding his time spent released on bond pending appeal did not entitle him to credit against his sentence of incarceration.

6.  Gaming/Contract: Affirmed: Three requirements must be satisfied for res judicata to apply: (1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2) an identity of cause of action exists; and (3) the parties or their privies are identical in both actions.   Carter, J., dissent by Schmidt, J.

No. 2014 IL App (3rd) 130111   Semb's, Inc. v. Gaming & Entertainment Management-Illinois, LLC Filed 6-23-14 (LJD)

The plaintiff, Semb's, Inc., d/b/a Da Lee's Fine Dining (Da Lee's), filed a complaint against the defendants, Gaming & Entertainment Management-Illinois, LLC (GEM), Metro Amusements, Inc. (Metro), and Best Gaming, LLC (Best), regarding a contract for the placement of video gaming terminals (VGTs). The contract was originally between Da Lee's and Metro,  who assigned the contract to Best, who then assigned it to GEM. The complaint alleged that the contract was invalid. The circuit court dismissed the complaint and Da Lee's appealed. On appeal, Da Lee's argues that  he court's decision was erroneous because the contract was invalid and unenforceable in that it: (1) was an illegal contract for gambling; (2) was not between a licensed VGT operator and a licensed establishment, as required by regulations on "use agreements;" (3) was assigned both to and  from unlicensed VGT operators, in violation of the regulations on "use agreements;" and (4) was immediately invalidated by the Illinois Gaming Board (IGB) denying Best's licensure application. We affirm.

8 Appellate Cases Posted 6-20-14

1. Copyright Law/Res Judicata: Reversed and remanded: Settlement in connection with 1970 federal lawsuit relating to ownership of rights to song did not bar plaintiff's action (as successor in interest to one of two songwriters), where the 1970 settlement primarily resolved issues regarding two music company's rights viv-a-vis the original two copyright holders, and did not resolve any issues between the two songwriters themselves, and trial court order dismissing plaintiff's claims as barred by res judicata and collateral estoppel was error. Hall. J.

No. 2014 IL App (1st) 122857  In re Estate of Brown  Filed 6-20-14 (TJJ)

This appeal involves two competing claims of copyright ownership in the musical composition "On the Road Again," a popular blues song.1 The copyright dispute is between Michael Brown, in his capacity as the independent administrator of the estate of his deceased father, Joe Brown, and Barbara Hoy, as successor-in-interest to her grandfather, Floyd Jones, also deceased.2 Barbara Hoy appeals from an order of the probate court of Cook County dismissing her amended petition for citation brought pursuant to section 16-2 of the Probate Act of 1975 (755 ILCS 5/16-2 (West 2008)) to recover the musical composition, alleged to be the property of Joe Brown's estate. For the reasons that follow, we reverse and remand.

2. Joint Tenancy: Affirmed: Trial court ruling that funds placed by decedent into account with defendant (and withdrawn by defendant upon decedent's death) complied with the Illinois Joint Tenancy Act, and defendant was within her rights to withdraw funds after decedent died, and funds were not part of decedent's estate. Palmer, J.

No. 2014 IL App (1st) 132113  Konfrst v. Steklik  Filed 6-20-14 (TJJ)

This case involves a citation proceeding brought by plaintiff Frank Konfrst, independent executor of the estate of Beverly J. Czerwinski (the decedent), against defendant Cynthia Stehlik, the decedent's niece, to recover the proceeds from a checking account and a money market account. Defendant withdrew the funds from both accounts after the decedent’s death and plaintiff brought this action to recover those funds on the ground that they belonged to the decedent’s estate. Defendant responded that the funds belonged to her because the decedent and defendant held the accounts in joint tenancy with the right of survivorship. Plaintiff, on the other hand, claimed that the accounts failed to comply with the requirements of the Illinois Joint Tenancy Act (the Act) (765 ILCS 1005/2 (West 2010)) and that the decedent did not intend to make a gift of a joint tenancy interest in either account but, instead, placed the defendant’s name on the accounts for convenience only so that defendant could assist the decedent in paying her expenses. A bench trial was held on the issues. Affirmed.

3. Condominium Law/Negligence: Affirmed: Complaint against condominium association which alleged only that association had notice that resident's dog was "violent" because of a prior attack of another dog, did not sufficiently plead that association had a duty to use reasonable care in preventing attack by dog on plaintiff, and trial court properly dismissed counts against association. Gordon, J..

No. 2014 IL App (1st) 132762  Tyrka v. Glenview Ridge Condominium Association  Filed 6-20-14 (TJJ)

Plaintiffs Marta and Emilia Tyrka appeal the trial court's order dismissing the counts in their complaint against defendant Glenview Ridge Condominium Association (condo association) pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)). Although other counts remain against another defendant, the trial court found, pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), that there was no just reason to delay the appeal of its order dismissing counts VII and VIII against defendant condo association. This appeal concerns injuries sustained by plaintiffs Marta and Emilia Tyrka as the result of an attack by a dog belonging to a condo owner. The issue on appeal is whether plaintiffs have stated a cause of action against the condo association for their injuries. For the following reasons, we affirm the dismissal.

4. Estates: Affirmed: Trial court properly ruled that witness in heirship case could properly testify as an expert in genealogy, and evidence tending to show that heirship records emanating from Ukraine were manufactured (as concluded by the trial court) justified trial court conclusion that petitioner was not related to decedent and was properly not an heir to his estate. Hall. J.

No. 2014 IL App (1st) 122224  In re Estate of Bennoon  Filed 6-20-14 (TJJ)

Petitioner Tatyana Tovstorog filed a motion to amend heirship in the estate of Carmel Bennoon. Following a hearing, the circuit court of Cook County entered an order denying the motion to amend heirship. The petitioner appeals, contending that: (1) the trial court erred when it found respondent Nicholas G. Grapsas', the public administrator of Cook County, expert witness qualified to render an opinion on genealogy; (2) the court erred when it denied comity to an order from the Ukrainian court; (3) the court erred when it denied the petitioner's motion to reopen proofs; (4) the denial of the motion to amend heirship was against the manifest weight of the evidence; and (5) the court erred when it denied the petitioner's motion for rehearing or, in the alternative, reconsideration of the order denying the motion to amend heirship. Having reviewed the record and considered the authorities relied on by the parties, we conclude that the trial court's rulings were not erroneous, and the decision to deny the motion to amend heirship was not against the manifest weight of the evidence.

5. Parking Meters: Affirmed: Agreement between the City of Chicago and parking meter company permitting company to maintain and manage parking meters in the City did not violate the public purpose provision of the Illinois Constitution (art. VIII, sec. 1) and trial court grant of summary judgment in favor of City and company in taxpayer suit was proper. Rochford, J.

No. 2014 IL App (1st) 123629  Independent Voters of Illinois Independent Precinct Organization v. Ahmad  Filed 6-20-14 (TJJ)

This is a taxpayer challenge to the City of Chicago's (the City) concession agreement with Chicago Parking Meters, LLC (CPM), pursuant to which the City transferred to CPM its metered parking system and all revenue produced from the parking meters for 75 years, in exchange for a one-time payment of $1,156,500,000. The circuit court dismissed certain of plaintiffs' claims pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)) and later granted summary judgment in favor of defendants on the remainder of plaintiffs' claims pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2012)). Plaintiffs appeal from the dismissal and summary judgment orders. CPM filed a conditional cross-appeal from one of the circuit court's findings regarding plaintiffs' standing to file their complaint, asking that we review this ruling in the event we reverse the decision of the circuit court based on plaintiffs' appeal. Because we affirm, we will not address CPM's conditional cross-appeal.

6. Criminal Law: Affirmed in part and vacated in part: Trial court did not act improperly in bench trial in considering other crimes evidence , as it was relevant in determining victim's ability to identify defendant who thereafter shot victim; 45-year sentence for attempt first degree murder not excessive in case where firearm used and resultant injury led to victim's paralysis and amputation of legs; aggravated battery conviction vacated per one act, one crime rule; and aggravated unlawful use of weapon conviction vacated pursuant to Aguilar. Lampkin, J.

No. 2014 IL App (1st) 082747  People v. Mimes  Filed 6-20-14 (TJJ)

Following a bench trial, defendant Martell Mimes was convicted of attempted first degree murder, aggravated battery with a firearm, and two counts of aggravated unlawful use of a weapon (AUUW). He was sentenced to concurrent terms of 45 years in prison for attempted murder, 10 years for aggravated battery with a firearm, and 3 years for AUUW. For the reasons that follow, we hold that (1) the trial judge did not improperly assume the role of prosecutor by considering other-crimes evidence against defendant for the limited purpose of identification; (2) defendant received sufficient notice prior to trial of alleged facts that increased the penalty range of his attempted murder conviction where he was not prejudiced in the preparation of his defense; (3) the trial court’s 45-year sentence for attempted first degree murder was not an abuse of discretion; (4) defendant’s convictions for attempted first degree murder and one count of AUUW did not violate the one-act, one-crime rule, but this rule was violated by his convictions for aggravated battery with a firearm and a second count of AUUW; (5) defendant’s conviction for carrying an uncased, loaded and accessible firearm on a public city street is reversed because the relevant provisions of Illinois’s AUUW statute violated the constitutional protection of the right to bear arms; and (6) the trial court properly assessed defendant with the $50 court system fee, but the other challenged fees or fines are vacated or offset by his time spent in custody.

7. Public Employment Law (Teachers): Affirmed: Trial court properly granted summary judgment to defendant school board in connection with complaint by dismissed tenured teachers, in light of district's decrease in enrollment and performance evaluations received by teachers. Carter, J.

No. 2014 IL App (3d) 130306  Frakes v. Peoria School District No. 150  Filed 6-20-14 (TJJ)

The plaintiffs, Michelle Frakes and Eymarde Lawler, filed a civil complaint for declaratory and injunctive relief, alleging that the defendant, Peoria School District No. 150, wrongfully terminated their employment as teachers. The parties filed cross-motions for summary judgment and, after a hearing, the circuit court granted the defendant school district's motion. On appeal, the plaintiffs argue that the circuit court erred when it granted summary judgment in favor of the defendant school district. We affirm.

8. Criminal Law/Good Conduct Credit: Affirmed: Trial court properly dismissed inmate's complaint for mandamus relating to Illinois Department of Correction's denial of good time credit and work release for inmate previously convicted of domestic battery, as statutory scheme gives Department sole discretion regarding the granting of good conduct credit and work release. Schmidt, J. (McDade, J., sp. concurring).

No. 2014 IL App (3d) 130677  Lee v. Godinez  Filed 6-20-14 (TJJ)

On May 1, 2013, plaintiff, Lincoln Lee, filed a petition for writ of mandamus in the Rock Island County circuit court against defendants, Department of Corrections Director Salvador Godinez, Deputy Director Ty Bates, transfer coordinator Sandra Funk, Warden Marc Hodges, and head counselor Randy Stevenston (hereinafter defendants). The petition, brought pursuant to section 14-101 of the Code of Civil Procedure (the Code) (735 ILCS 5/14-101 (West 2012)), alleged that defendants abused their discretion in denying plaintiff good-time credits, work release, and electronic home detention based upon his prior domestic battery conviction, and that section 3-6-3(a)(3) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/3-6-3(a)(3) (West 2012)) violated the ex post facto clause. U.S. Const., art. I, §§ 9, 10; Ill. Const. 1970, art. I, § 16. The trial court, sua sponte, denied the petition without hearing on August 12, 2013. The court appointed counsel on October 22, 2013. Plaintiff's appointed counsel filed a notice of appeal on November 14, 2013. Plaintiff's counsel has now filed a motion indicating that the instant appeal presents no issues of merit. This motion, filed in accordance with Anders v. California, 386 U.S. 738 (1967), requests that counsel be permitted to withdraw. Plaintiff opposes the motion. For reasons set forth below, we allow the motion and dismiss this appeal.

4 Supreme Court Posted 6-19-14

1. Wrongful Death/Legal Malpractice: Affirmed: An attorney who brings a wrongful death action owes a legal duty to the decedent’s beneficiaries at the distribution of funds phase of the action   Since the beneficiaries named in a wrongful death action are intended beneficiaries of the action rather than merely incidental beneficiaries, the attorney’s duty extends to them. We agree with the appellate court that plaintiff’s complaint sufficiently pled the proximate cause element and the circuit court erred in dismissing count II of the complaint. Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014 IL 115997    In re the Estate of Powell   Filed  6-19-14 (RJC)

At issue in this appeal is the scope of an attorney’s duty in an action brought pursuant to the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2012)). Plaintiff, the estate of Perry C. Powell, filed claims for legal malpractice against several attorneys and their law firms as a result of the attorneys’ conduct in handling a wrongful death action in which Powell was a beneficiary. The circuit court of Cook County dismissed the legal malpractice counts of plaintiff’s complaint, finding that defendants did not owe Powell a duty. The appellate court reversed in part and remanded for further proceedings, finding inter alia that defendants owed Powell a duty. 2013 IL App (1st) 121854. This court allowed defendants’ petitions for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013). We now affirm the judgment of the appellate court.

2. Juvenile Court Act/Neglect/Standing: Affirmed: This appeal raises the question of whether the State had standing to bring this challenge and obtain this relief.  In this decision, the Illinois Supreme Court said that, in the best interest of the minor, the State has standing to raise parentage issues in a neglect proceeding under the Juvenile Court Act. To do this however, the Parentage Act must be complied with and that did not occur here. The court said that the presumption of paternity created by the signing of the voluntary acknowledgement of paternity could not be challenged under section 6(d) of the Parentage Act, as asserted by the State, and, thus, there was no need to address the question of whether, under that section, the now-known DNA results raised a question of evidentiary sufficiency. The State also argued that its paternity challenge was proper under the Parentage Act’s section 7(b), but the court said here that this is not statutorily authorized. Although the guardian ad litem had supported the State, the guardian had not filed the motion in question, and the Parentage Act does not authorize the State, alone, to initiate an action to disestablish paternity.  lthough a new neglect proceeding is now called for, as ordered by the appellate court, that does not mean that disestablishment of the husband’s paternity is foreclosed. The guardian ad litem has standing to seek it and may do so on remand. The appellate court was affirmed. However, if, on remand, there is a new, valid challenge to paternity by the guardian ad litem, the results of that would bear on whether a new neglect proceeding should be held. Justice Kilbride delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Karmeier, and Burke concurred in the judgment and opinion. Justice Theis specially concurred, with opinion, joined by Chief Justice Garman.

No. 2014 IL 116532   In re N.C., a Minor   Filed  6-19-14 (RJC)


In February of 2012, a baby was born at Proctor Hospital in Peoria to the mother who is the appellee in this case. A little less than a month later, she married the man who, the day after the birth, had signed a voluntary acknowledgement of paternity under the Illinois Parentage Act of 1984. However, subsequent genetic testing would reveal that he was not the biological father. The mother had previously been adjudicated an unfit parent in proceedings concerning her other three children. Four days after the birth, the State filed a neglect proceeding under the Juvenile Court Act, seeking to have the infant adjudicated neglected and made a ward of the court. Both the mother and the man who would soon become her husband were named as parties. As to him, the State alleged a criminal history, bipolar disorder, and failure to take his medication. Subsequently, following the revelation that the new husband was not the biological father, the State made a motion for a declaration of nonpaternity. It asked that he be removed as a party from the neglect proceeding and that the voluntary acknowledgement of paternity be vacated.

The circuit court of Peoria County granted the State’s motion for a declaration of the new husband’s nonpaternity and it discharged him as a party to the neglect proceeding. After discharging the new husband from the proceeding, the court found the child neglected and the mother unfit, while naming the Department of Children and Family Services as guardian. The mother appealed. The appellate court remanded for a new neglect proceeding which would include the new husband. It concluded that the State did not have standing to challenge his paternity in the neglect proceeding and that, even if it did, applicable statutory provisions had not been complied with. The State appealed to the Illinois Supreme Court.  Although the State argued that it wanted to insure that the true biological father was participating in the neglect proceeding, it had not taken steps toward the genetic testing of another man who was a possible father. The mother complained of the State’s attempts to delegitimize her child without first establishing paternity in another putative father. The Department of Healthcare and Family Services (not DCFS) intervened as appellee.

3. IMDMA/Child Support: Affirmed in part and reversed in part and remanded: That custodial parents may be required to pay child support to noncustodial parents where circumstances warrant it has long been recognized by the courts. The principles set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act support our conclusion that under section 505, a trial court may order the custodial parent to pay child support to the noncustodial parent where circumstances and the best interest of the child warrant it. Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014 IL 115997    In re Marriage of Turk   Filed  6-19-14 (RJC)

The issues in this case are (1) whether section 505 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/505 (West 2012)) permits a trial court to award child support to a noncustodial parent and (2) if so, whether the circuit court abused its discretion when it awarded $600 per month in child support to the noncustodial parent here in addition to requiring the custodial parent to pay additional medical and dental expenses for the children. The appellate court held that trial courts do have authority under the statute to order custodial parents to pay child support and found no abuse of discretion in the trial court’s decision to increase the amount of medical and dental expenses the custodial parent in this case was required to pay. It concluded, however, that the record did not support the $600 per month child support award. It therefore reversed that portion of the trial court’s judgment and remanded for an evidentiary hearing with instructions for the trial judge “to clearly explain the basis for any support awarded, as required by section 505 ***.” For the reasons that follow, we affirm in part and reverse in part and remand to the circuit court.

4. CONDOMINIUMS: Reversed: At issue is whether an association’s purported failure to repair or maintain the common elements is germane to the proceeding, and thus may be raised by the unit owner in defense of the forcible action. We hold that it is not germane to the forcible proceeding, and thus reverse, in part, the judgment of the appellate court. Justice Theis delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas and Karmeier concurred in the judgment and opinion. Justice Freeman dissented, with opinion, joined by Justices Kilbride and Burke.

No. 2014 IL 115342   Spanish Court Condominium Association v. Carlson - Dissent upon denial of rehearing    Filed  3-20-14 (RJC)

This appeal arises out of a forcible entry and detainer action filed by a condominium association against one of its unit owners based on unpaid assessments.          

3 Appellate Cases Posted 6-19-14

1. Medical Malpractice: Affirmed: The trial court properly dismissed the second amended complaint with prejudice. First, plaintiff’s medical battery claims, which allege treatment that substantially varied from the consent granted, require compliance with section 2-622 of the Code, because an assessment of the claims requires knowledge, skill, or training in a technical area outside the comprehension of laypersons. Contrary to plaintiff’s assertion, she has not complied with section 2-622. Second, the second amended complaint restates e